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Mason, Gail --- "Harm, Harassment And Sexuality" [2002] MelbULawRw 31; (2002) 26(3) Melbourne University Law Review 619

HARM, HARASSMENT AND SEXUALITY

GAIL MASON[*]

[In a recent study of the behaviours that prompt women to lodge a complaint of ‘homosexuality’ discrimination under New South Wales law, it was found that a high proportion of such complaints involved harassing-type conduct. Special provisions for sexuality harassment are minimal in Australian discrimination law. An alternative avenue of redress may be to lodge a complaint of sexual harassment. Feminist legal theorist Drucilla Cornell has proposed a redefinition of sexual harassment that is capable of incorporating sexuality harassment. In Cornell’s definition the harm of harassment is reconceptualised, in part, as an enforced form of sexual shame that undermines one’s self-respect. This article considers whether the harm of sexuality harassment can be adequately addressed through this definition of sexual harassment.]

CONTENTS



INTRODUCTION

Once, when people remarked on the development of the concept of harassment you could assume that they were talking about the growing recognition in popular and legal discourse of sexual harassment as a gendered harm. Local and international feminist campaigns to name sexual harassment as a legal wrong have achieved considerable success since the 1970s.[1] In Australia, the rewards of these efforts are apparent in the fact that every jurisdiction now recognises sexual harassment as a cause of action, in specified spheres of life, under discrimination legislation.[2] Currently, however, when people refer to the changing interpretations of harassment, they may well be talking about something other than sexual harassment. The concept of harassment has undergone a somewhat less transparent transformation over the last two decades. Increasingly, the language of harassment is being used to signify conduct that has little to do with its conventional sexual derivation. Without overstating this move, it is fair to say that we appear to be witnessing an expanding utilisation of non-sexual interpretations of harassment in a number of socio-legal contexts.

In international terms, this expansion is suggested by the diverse ways in which the notion of harassment is put into law.[3] In Australia, there is evidence of non-sexual interpretations of harassment both outside and inside discrimination law. In relation to the former, the terms ‘harassment’ and ‘workplace harassment’, for example, are often employed to refer to conduct during the course of employment that may contravene occupational health and safety law.[4] In terms of discrimination law, a number of developments point to the gradual evolution of the notion of non-sexual harassment. In particular, various forms of non-sexual harassing conduct have been found by Australian tribunals and courts to amount to direct discrimination: for example, the use of terms such as ‘black lazy bastard’[5] and ‘fucking wog bastard’.[6] This is despite the fact that only a few jurisdictions explicitly include non-sexual forms of harassment in the definition of discrimination.[7] In addition, it is now recognised that women may be subject to harassment which is not sexual in nature — in the sense that it does not revolve around the sexual practices and desires of heterosexual men — but which is nevertheless grounded in stereotypes of women. This is sometimes referred to as sex-based harassment.[8] One of the most telling signs of this broadening interpretation is found in the increasing emphasis that equal opportunity and anti-discrimination agencies in Australia are placing on the notion of non-sexual harassment (discussed in more detail below).[9] In short, there are strong indications that harassing-type conduct can provide a basis for a cause of action under Australian discrimination law (as well as other forms of law, such as occupational health and safety law) even when such conduct is not sexual in nature.

In this article I consider one particular form of non-sexual harassment: sexuality harassment. The term ‘sexuality harassment’, as I employ it here, refers to harassing-type conduct that is directed towards a person or persons on the basis of their assumed sexual preference. Whilst this understanding of sexuality harassment may involve harassment of someone because they are heterosexual, the vast majority of such harassment is likely to be directed towards someone because they are, or are assumed to be, gay or lesbian.[10] My discussion will centre upon sexuality harassment that is directed towards women who are presumed to be lesbian. With the exception of the Northern Territory, there are no special provisions for sexuality harassment in Australian legislation.[11] Nevertheless, as I will demonstrate, complaints of sexuality harassment may be brought under existing homosexuality discrimination provisions. It is questionable, however, whether these provisions, which are designed to respond to a broad range of discriminatory actions, provide an adequate remedy for the kinds of harassing conduct that lesbians and gay men appear to experience. An alternative avenue of redress may be to lodge a complaint of sexual harassment. In considering whether sexuality harassment can be adequately addressed through sexual harassment provisions, I argue that it is important to be able to distinguish such harassment from sexual harassment. This does not mean that sexuality harassment directed towards women, especially when perpetrated by heterosexual men, is completely separate from sexual harassment: both forms of harassment are grounded in intertwined assumptions about appropriate modes of sexual expression and gender conformity. But it does mean that there are specific features to the enactment and experience of each, specificities that prevent sexuality harassment from being reduced to a question of sexual harassment. It is these specificities that concern me in this article.

My interest in exploring whether sexuality harassment can be equated or reduced to sexual harassment is prompted by the support that this approach has received in some international feminist jurisprudence. In particular, Drucilla Cornell has offered a redefinition of sexual harassment that seeks to provide a practical solution to the failure of US courts to offer full protection for lesbians and gay men against harassment and discrimination.[12] This redefinition dovetails with a wider movement within feminism to reconsider the whole idea of gendered harm (an idea that underpins much sexual harassment law). This movement is largely driven by concerns about the tendency of feminism to rely upon a politics of ressentiment. This is a form of politics that, according to commentators such as Cornell,[13] Brown[14] and Butler,[15] is grounded in the problematic presumption that patriarchal oppression involves a series of collective injuries or harms that are experienced equally by all women. Such injuries are said to demand a mode of politics that prioritises revenge and retribution as the moral ground upon which to base claims of group recognition for all women. One of Cornell’s contributions to this shifting ground of identity politics has been to offer a redefinition of sexual harassment and a reassessment of its harm. This focus on the question of harm shapes her argument that sexuality harassment can be incorporated into the definition of sexual harassment.

The article is divided into two sections. In the first section, I discuss how sexuality harassment is treated in Australian discrimination law. I examine the question of the harm of sexual harassment by looking at feminist concerns about the understanding of harm in Australian definitions of sexual harassment and the redefinition of sexual harassment proposed by Cornell. Cornell’s definition is situated and critiqued within the context of US law on sexuality discrimination and harassment. In the second section I explore the specificities of harm caused by sexuality harassment. I do this by presenting the findings from an empirical study into discrimination and vilification complaints lodged by women under the homosexuality ground in the Anti-Discrimination Act 1977 (NSW) (‘ADA’). As we shall see, a high proportion of these complaints involved harassing-type conduct. This allows me to speculate about the harm of sexuality harassment. I suggest that sexuality harassment is grounded in homophobia which, in turn, evinces a strong link to discourses of visibility. That is, the harm of sexuality harassment is inevitably tied to dominant heterocentric narratives about naming, outing or otherwise rendering visible marginal sexualities, such as gay and lesbian sexualities. Although there are important points of commonality between sexuality harassment and sexual harassment, I suggest that we should not be too quick to assume that the harm of sexuality harassment can be adequately addressed as a question of sexual harassment.

II SEXUALITY HARASSMENT UNDER DISCRIMINATION LAW

A Sexuality Harassment as Sexuality Discrimination

Unlike sexual harassment, harassing conduct that is not sexual in nature does not have a comprehensive history of statutory definition. By non-sexual harassment I mean conduct that primarily involves racist, homophobic, anti-religious, anti-disability (or other prescribed) words and actions. Several pieces of federal and State legislation prohibit harassment that is not explicitly sexual in nature, but this approach is piecemeal. The most expansive reference to non-sexual harassment appears in the Anti-Discrimination Act 1992 (NT). There, the definition of discrimination includes ‘harassment’ on the basis of attributes such as ‘race’, ‘sexuality’, ‘age’, ‘religious belief or activity’ and ‘impairment’ (harassment on the basis of ‘sex’ is also included).[16] In Western Australia, the Equal Opportunity Act 1984 (WA) prohibits ‘racial harassment’ in specified areas of activity, including employment, education and accommodation.[17] It is worth noting that the Anti-Discrimination Act 1998 (Tas) also prohibits certain forms of ‘sex-based’ conduct that might otherwise not be covered by the definition of sexual harassment. Under this legislation it is against the law to engage in conduct which ‘offends, humiliates, intimidates, insults or ridicules another person’ on the basis of gender, marital status, pregnancy, breastfeeding, parental status or family responsibilities.[18] At the federal level, the Disability Discrimination Act 1992 (Cth) prohibits ‘discrimination involving harassment’ in relation to a person’s disability in the areas of employment, education and the provision of goods and services.[19]

There is a close association between these kinds of provisions and the vilification and racial hatred provisions in discrimination statutes. New South Wales was the first Australian jurisdiction to introduce such legislation in 1989.[20] In this State it is ‘unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of’ a person or group of persons on the grounds of homosexuality,[21] transgender,[22] race[23] or HIV/AIDS[24] status. Most States and Territories in Australia now have broadly similar provisions.[25] In 1995, the federal race discrimination laws were amended by the Racial Hatred Act 1995 (Cth) to prohibit certain conduct involving the hatred of other people on the ground of ‘race, colour or national or ethnic origin’.[26] To date, no other grounds have been included under federal law.

The similarity between the notion of vilification (or racial hatred) and the notion of non-sexual harassment in discrimination law lies in the fact that both seek to prohibit adverse treatment on prescribed grounds, such as race or disability. Unlike other forms of discrimination, however, legislative prohibitions of vilification and racial hatred are not limited by reference to particular areas of activity,[27] such as employment, education or the provision of goods and services. Instead, their application is confined to instances of ‘public acts’[28] or acts that are ‘otherwise than in private’.[29] Whilst definitions of vilification also share similarities with definitions of sexual harassment, there are differences too. For example, in New South Wales, the harm of sexual harassment is understood to be a matter of offence, humiliation or intimidation,[30] whereas the harm of homosexuality vilification is encapsulated in the prohibition against inciting ‘hatred towards, serious contempt for, or severe ridicule of a person or group of persons’ on the ground of homosexuality.[31] These distinctions are a product of the close connection between vilification provisions and the restraint of free speech.[32] As well, each definition has been shaped by the specific claims for law reform proposed by two different social movements: that is, sexual harassment provisions have been influenced by feminist calls for change whilst vilification provisions have been shaped by the demands of the anti-racist movement in Australia. Whether this kind of distinction has any basis in experiential terms — in people’s actual experiences of objectionable behaviour that is tied to identity categories of gender, race, sexuality and so on — is another question. Nonetheless, these definitional differences enable law-makers to draw fine, if arbitrary, demarcations between harassment and vilification in discrimination legislation.

Hence, only one discrimination statute in Australia expressly includes sexuality harassment as a ground of complaint. Nonetheless, potential avenues of redress for sexuality harassment do exist under discrimination legislation.[33] For example, if the conduct can be shown to create a hostile work environment it may be held to constitute discrimination.[34] According to this line of authority, harassment that is not sexual in nature may be a form of less favourable or differential treatment and, hence, may amount to direct discrimination under the designated grounds in a given statute (such as homosexuality).[35] The Human Rights and Equal Opportunity Commission therefore states that ‘forms of harassment based on a person’s race, sexuality or disability, for example, would be unlawful under other anti-discrimination laws.’[36] The Anti-Discrimination Board of New South Wales is more explicit. It asserts that ‘it is against anti-discrimination law for employees to be harassed during the course of their work because of their ... homosexuality — actual or presumed.’[37] The Board defines this form of non-sexual harassment as any form of behaviour that ‘the other person does not want and does not return’ and which ‘offends, humiliates or intimidates them’ and ‘targets them because of their ... homosexuality (actual or presumed).’[38] In Daniels v Hunter Water Board[39] the New South Wales Equal Opportunity Tribunal found that being called names and being subjected to practical jokes and intimidating conduct at work amounted to discrimination on the ground of the complainant’s perceived homosexuality. Whilst tribunals have been willing to find that forms of non-sexual harassment, such as sexuality harassment, can amount to discrimination, the fact still remains that, apart from the few exceptions mentioned above, sexual harassment is the only form of harassment that is specifically prohibited in legislation. All other forms of harassment can be ‘dealt with only to the extent that they constitute a form of discrimination.’[40]

This means that the extent to which non-sexual harassment may constitute discrimination is restricted in a number of ways — restrictions that do not apply to sexual harassment provisions. For example, in New South Wales, harassment in the workplace will amount to discrimination only when management or supervisors are involved or approve the conduct.[41] Harassment by coworkers is not covered. Similarly, in the area of education, harassment of a teacher or a parent at a school is not unlawful under the ADA 1977 (NSW).[42] The New South Wales Law Reform Commission has also noted that harassment may involve experiences of humiliation and intimidation that are not necessarily present in discrimination.[43] Although the Commission appears to be referring to sexual harassment, the same point can be made about sexuality harassment and other forms of non-sexual harassment (a point that I will return to later). Currently, in order to demonstrate that any form of non-sexual harassment amounts to direct discrimination under New South Wales legislation, the conduct must amount to ‘less favourable treatment in comparison with a real or hypothetical comparator from the mainstream group in the same or similar circumstances on a prohibited ground.’[44] In a complaint of sexuality harassment by a lesbian, the complainant’s treatment might well be compared to the treatment that a heterosexual woman would be expected to receive. Whilst this comparison might serve some complainants well, it is possible that sexuality harassment involves a specific mode of harm that is not readily identifiable through this type of comparison (a point I return to in Part II).

B Sexuality Harassment as Sexual Harassment

Unlike other forms of non-sexual harassment, a potential avenue for some complaints of sexuality harassment also exists under sexual harassment provisions. It was established as early as 1984, in O’Callaghan v Loder, that sexual harassment by one man of another can amount to unlawful discrimination on the ground of sex.[45] Moreover, the gender-neutrality of current sexual harassment provisions means that same-sex sexual harassment is actionable in all jurisdictions. Although it may not be possible to draw a distinction in all cases, it is important to recognise that same-sex sexual harassment cannot be equated with sexuality harassment (as I define it in this article). The former refers to unwelcome conduct of a sexual nature that is directed by a person of one sex to a person of the same sex. In a typical scenario, the first person would most likely be a gay man or a lesbian, whilst the second person may or may not be homosexual. Sexuality harassment refers to unwelcome conduct by a person of any sex and/or sexuality towards another person on the basis of their presumed sexuality. In a typical scenario of this form of harassment, the harasser is heterosexual and the person harassed is gay or lesbian. In practice, it is not always possible to categorise harassing conduct so neatly, especially when gay men and lesbians can lodge complaints under sexual harassment provisions in order to avoid disclosing their sexuality.[46] Nonetheless, a crucial ingredient of sexuality harassment, that may or may not be present in same-sex sexual harassment, is the seemingly anti-homosexual flavour of the conduct.

It is not possible to say that sexuality harassment per se has been accepted as a form of sexual harassment in Australian discrimination law. However, it does appear that unwelcome conduct in a workplace which is sexual in nature, such as ‘offensive sexual jokes or comments about a gay (or lesbian) colleague’, is likely to be unlawful under most sexual harassment provisions.[47] In order to fall within the ambit of sexual harassment provisions, the complainant must establish that the conduct was of a sexual nature.[48] The fact that individual complainants may have success with such an argument does not necessarily make the invocation of sexual harassment provisions a satisfactory or desirable solution for sexuality harassment in the long term.[49] To my mind, the question of whether sexual harassment provisions provide a suitable remedy for sexuality harassment ultimately depends on whether or not the notion of sexual harassment is capable of recognising the harm of sexuality harassment without downplaying or ignoring crucial features of that harm.

C Harm: Australia and the United States

The way in which Australian discrimination law currently defines the harm of sexual harassment continues to attract considerable feminist critique. As I have indicated, the harm of sexual harassment is defined, at a minimum, in all Australian jurisdictions as a matter of offence, humiliation or intimidation.[50] Much critique centres upon the way that this language emphasises questions of morality over those of equality. Such language is said to imply that harassment is a form of misplaced rather than discriminatory behaviour. Whilst feelings of intimidation and humiliation are not uncommon reactions to sexual harassment, research suggests that women also experience anger, distress, fear, alienation, confusion, helplessness and guilt.[51] In particular, the notion of ‘offence’ is said to summon the ‘paternalistic protection of the law’ which, in turn, allows for an ‘easy elision between “being offended” and moral prudery’.[52] As if to prove this point, it has been suggested that sexual harassment can be most helpfully understood as a breach of ‘sexual etiquette’ and ‘good manners’.[53] Critics of this argument point out that it trivialises unwanted sexual behaviour by classifying it with the ‘elbows on the dinner table’ genre of social transgressions.[54] Such appeals to ‘gentlemanly conduct’ are merely the ‘“flip side” of the kind of attitude which produces sexual harassment.’[55]

In an attempt to displace the current emphasis on morality in Australian legislative definitions of sexual harassment, Jenny Morgan has suggested that a feminist ‘equality-based understanding of sexual harassment’ might be helpfully ‘supplemented with closer ties to the rights of bodily autonomy related to citizenship.’[56] To make this argument she turns to the work of US legal theorist, Drucilla Cornell. Cornell argues that the question of sexual harassment involves the ‘primary good of equality regarding self-respect recognizable by all as fundamental to each one of us as rational and moral individuals.’[57] She asserts that women are ‘degraded when they are reduced to stereotypes of their “sex” or have imposed upon them objectified fantasies of their “sex” so that they are viewed and treated as unworthy of equal citizenship.’[58] In this sense, the harm of sexual harassment is reconceptualised as undermining ‘the equal provision of the social bases of self-respect.’[59] This understanding, which has been the impetus for Cornell’s formulation of a new definition of sexual harassment, has been received favourably in Australia.[60] Cornell’s definition reads as follows:

Sexual harassment consists of a) unilaterally imposed sexual requirements in the context of unequal power, or b) the creation and perpetuation of a work environment which enforces sexual shame by reducing individuals to projected stereotypes or objectified fantasises of their ‘sex’ so as to undermine the primary good of self-respect, or c) employment-related retaliation against a subordinate employee or, in the case of a university, a student, for a consensually, mutually-desired sexual relationship.[61]

Cornell’s definition is gender-neutral and, indeed, does not even refer to gender. The rationale for this is twofold. First, and most fundamentally, she wishes to move away from the assumption — popular in a feminist politics of ressentiment and specifically in what might be called the ‘MacKinnon approach’ to gender and sexuality — that victimisation is an essential component of what it means to be a woman.[62] Cornell’s attempt to recognise the harm of sexual harassment, without essentialising that harm to gender, is part of a wider debate within feminism and critical race studies over the extent to which certain forms of injury — such as violence, harassment or hate speech — are intrinsic to identity and subjectivity.[63] Second, Cornell explicitly intends her definition of sexual harassment to encompass the harassment of lesbians and gay men. In general terms, clause b) of Cornell’s definition seeks to replace the notion of a hostile work environment with the notion of enforced ‘sexual shame’. Such shame is said to emerge when an individual is refused the primary good of self-respect. For an individual to experience self-respect, they must feel proud of their desires and behaviours. When those desires and behaviours are continually degraded and devalued by others it becomes difficult, if not impossible, for an individual to feel such pride. Instead, they are more likely to experience feelings of shame that, in turn, severely limit their capacity to take pleasure in their sexuality.[64] In this element of the definition, Cornell seeks to emphasise the question of equality as one based on the imposition of sexual shame, rather than one based on gender alone. Therefore, the concept of sexual shame is intended to allow gay men and lesbians access to claims of harassment.[65]

It is not difficult to understand why Cornell would seek to include sexuality harassment under sexual harassment provisions. It is part of a wider and long-standing campaign for recognition of sexuality harassment — usually referred to as sexual orientation harassment — under US sexual harassment law. Although a number of US states and many municipal and county jurisdictions prohibit employment discrimination based on sexual orientation, most do not.[66] Complainants living in jurisdictions without State laws can only proceed under city or county laws. In terms of federal law, it is clearly established that, despite actions seeking to establish otherwise, sexual orientation discrimination is not actionable under Title VII of the Civil Rights Act of 1964.[67] Title VII makes it unlawful to discriminate in the workplace against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual’s race, colour, religion, sex or national origin.[68] This is the statute under which most federal claims of sexual harassment in the workplace are brought. Although the US Supreme Court in Oncale v Sundowner Offshore Services Inc[69] held that same-sex harassment is actionable to the extent that it occurs because of the plaintiff’s sex, if the harassment is due to the victim’s perceived sexual orientation the court will not consider it to be a matter of sex.[70] In terms of sexuality harassment specifically, Simonton v Runyon[71] held that, in spite of appalling persecution and clear sexual overtones in comments directed to a gay male postal worker, it is well-settled in most circuits that Title VII does not prohibit harassment because of sexual orientation.[72] In other words, the judicial interpretation of ‘sex’ is confined to gender and does not extend to sexual orientation.

Claims of sexual orientation discrimination have achieved, however, some recent success under the 14th Amendment of the United States Constitution. Unlike Title VII, the ‘equal protection clause’ of the 14th Amendment is not limited by express categories. In particular, it has been held that individuals have a constitutional right under this clause to be free from sexual orientation harassment that produces a hostile work environment in public employment.[73] Yet, as Jasiunas points out, this constitutional approach is an inadequate response to the problem of sexual orientation discrimination. Not all courts in the US accept that state action can be challenged on equal protection grounds, as sovereign immunity may offer protection from suit. Furthermore, the ‘equal protection clause’ applies only to state actors and not to the private sector.[74]

Hence, we can look at Cornell’s desire to redefine sexual harassment so as to incorporate sexuality harassment as part of a broader search for a practical legal remedy for sexuality harassment and discrimination. This search comes in the face of continued judicial rejection of sexual orientation harassment as a subcategory of sexual harassment or sex discrimination. Coleman traces this rejection to the attempt by courts to draw a distinction between harassment that targets sex and harassment that targets sexual orientation (a distinction that Coleman considers unsustainable).[75] Although the US Supreme Court in Price Waterhouse v Hopkins[76] held that a suit alleging harassment or disparate treatment based on nonconformity with sexual stereotypes is cognisable under Title VII as discrimination based on gender, subsequent courts have given a narrow reading to this decision, restricting it to women who are discriminated against because of masculine behaviour, disentitling men who exhibit feminine behaviour from making a claim under Title VII.[77] The second arm of Cornell’s definition may avoid the artificiality of this distinction by naming the immediate harm of sexual harassment as a question of sexual shame that reproduces stereotypes or fantasies of one’s sex (which, in turn, undermines one’s self-respect). The idea that the harm of harassment lies in the experience of sexual shame through the imposition of stereotypes is a potentially helpful way of defining the injury of sexuality harassment for lesbians and gay men.

Nonetheless, I have reservations about Cornell’s proposition.[78] These do not lie with her definition per se, but rather with the assumption that sexuality harassment can be adequately encompassed by sexual harassment. These concerns are thus applicable to calls in Australia for sexuality harassment to be incorporated under sexual harassment provisions. It appears that US courts have been too ready to demarcate conduct based upon an individual’s sexuality from conduct based on an individual’s sex. In order to counter this position — and no doubt bolstered by the enthusiasm with which feminist legal studies has embraced the concept of intersectionality — some have argued that sexuality harassment is a form of gender harassment and should be recognised as sexual harassment.[79] Such arguments are based upon the idea that discourses of sexuality and gender are so intertwined that anti-homosexual sentiment must involve some form of negative reaction to the rejection of gender norms. This makes perfect sense. Feminist and queer theory has long recognised that Western understandings of sexuality are deeply imbued with assumptions about gender.[80] In simple terms, sexual desire embodies strong expectations about the cultural traits that are assumed to be intrinsic to masculinity and femininity. As an attraction between supposed opposites, heterosexuality is contingent upon normative and dichotomous notions of gender. Thus, homosexuality not only disregards heterosexual conventions but also challenges the axiom that masculinity and femininity (gender) are essentially, albeit partly, defined as a sexual attraction to each other. As a consequence, homophobia is always refracted through regimes of gender.

Attempts to recognise this interaction do, however, become problematic when they assume that sexuality is just one component of gender. For example, in suggesting that heterosexuality is ‘a gender-based stereotype’, Chisholm asserts that ‘sexuality is part of an individual’s gender’ and that ‘[g]ender stereotypes encompass sex-based norms’.[81] Although such arguments seek to redress the lack of legal remedy for sexuality harassment in the US, they tend to reproduce problematic assumptions about the relationship between sexuality and gender. Even where a commentator recognises that sexuality and gender are not identical, the assertion that one can be ‘encompassed’ by the other inevitably operates to trivialise those aspects of anti-homosexual sentiment (or homophobia) that cannot be accounted for by gender.[82] In terms of harassment, this reduces our ability to acknowledge the possibility that sexuality harassment involves harms that are not a part of sexual harassment. In turn, this may mean that claims of sexuality harassment are less likely to be recognised under sexual harassment law than they would be under provisions tailored to remedy the specificities of sexuality harassment.

Although Cornell expressly attempts to circumvent the gender question, her inclusion of sexuality harassment in the redefinition of sexual harassment raises a similar problem to the argument that sexuality harassment can be adequately characterised as a question of gender. This is particularly evident in her use of the term ‘sex’. Cornell employs ‘sex’ to refer both to conventional notions of gender (in terms of male/female and masculinity/femininity) and to our understandings of ourselves as sexual beings who engage in sexual activity (as in ‘having sex’ or having a sexual preference).[83] The difficulty emerges when Cornell puts this definition into practice in relation to a material issue like sexual harassment. In elucidating her notion of sexual shame, Cornell cites examples of ‘sexual’ conduct as it relates to gender but never as it relates to sexual preference. For instance, to ground the argument that sexual shame devalues a woman as a person and undermines her self-respect by projecting stereotypes or fantasies based on her ‘sex’, she refers to the terms ‘cunt’ or ‘dumb-ass woman’.[84] For Cornell, this new emphasis on equality as a question of sexual shame enables gays and lesbians to be included in the definition of sexual harassment. Unfortunately, this inclusive intention is not fully integrated into the subsequent discussion of sexual shame and thus runs alarmingly close to the idea that sexuality (that is, sexual orientation) can be ‘encompassed’ by gender; or, in Cornell’s terms, to the idea that sexuality can be encompassed by ‘sex’, as a matter of masculinity and femininity. This also emerges in the way that Cornell uses ‘sex’, ‘sexual difference’ and ‘sexuate being’ as if they are interchangeable concepts.[85] In particular, she frames her discussion of sexual harassment as a question of sexual difference. In tune with established feminist theory, this is an understanding of sexual difference that signifies the demarcation between categories of masculinity and femininity (gender).[86] Hence, the unfortunate implication of the argument that harassment devalues gay men and lesbians as ‘less than persons because of their “sex”’[87] is that this ‘sex’ has more to do with sexual difference (masculinity/femininity) than it does with sexual preference (heterosexuality/homosexuality).

In short, in seeking to counter the arbitrary distinction between sexuality and sex/gender emphasised by the US judiciary, Cornell relies upon a deliberately slippery articulation of ‘sex’. Sex as it refers to sexual preference and practice is never distinguished from sex as it refers to sexual difference or gender. Whilst this approach attempts to recognise the interaction between the two, it does this by emphasising sexual difference at the expense of sexual preference.

This conundrum is, I believe, implicit in any attempt to use sexual harassment provisions to recognise the harm of sexuality harassment, whether we are talking about existing provisions in Australian discrimination law or a reworked definition of the kind that Cornell proposes. To do so is to risk privileging established understandings of sexual harassment as a gendered harm. If sexuality harassment could be reduced to a question of gender, as Chisholm suggests, then this would not necessarily be a problem. My concern, however, is that sexuality harassment emerges out of cultural expectations that exceed (but do not exclude) the explanatory power of gender. Cornell’s rejection of gender demonstrates that she is deeply attuned to this. Nonetheless, the absence of an acknowledgment of the specificity of the experience of sexuality harassment highlights the ease with which attempts to merge sexuality harassment with sexual harassment can inadvertently function to privilege the explanatory capacity of sex as a question of masculinity/femininity (gender), rather than heterosexuality/homosexuality (sexuality). In effect, the ‘sex’ in both sexual and sexuality harassment may too readily be taken to represent sex/gender and thereby obfuscate the specificities of sexuality harassment.

This should make us question whether it is desirable to rely upon sexual harassment as a legal remedy for sexuality harassment. Might such reliance encourage us to recognise certain harms at the expense of others? Or, to put it another way, might the tendency of definitions of sexual harassment to privilege questions of sex/gender make it difficult for discrimination law to recognise the harm of sexuality harassment? These concerns presume that sexuality harassment is not solely a product of the sex/gender system. In Part III of this article, I explain this premise by suggesting that sexuality harassment, particularly the centrality of anti-homosexual sentiment and the heterosexual/homosexual hierarchy to its enactment and experience, exceeds the explanatory capacity of the sex/gender system. This, I suggest, has implications for the kinds of harm involved in the experience of sexuality harassment. I ground this discussion in an empirical study into women’s complaints of sexuality harassment under New South Wales discrimination law.

III THE EXPERIENCE OF SEXUALITY HARASSMENT

A Empirical Research on Sexuality Harassment

In Australia there is a small body of research which establishes that discrimination, harassment, and violence are significant problems in the lives of many lesbians and gay men.[88] To date, only one empirical study has examined the kinds of conduct that prompt complaints of discrimination or vilification under sexuality provisions in discrimination law. This study by Chapman and myself examined complaints of discrimination and vilification lodged by women under the homosexuality ground with the New South Wales Anti-Discrimination Board.[89] The study examined complaint files closed between January 1993 and February 1997: a total of 50 files.[90] The files were categorised by the Board as follows: 44 files (88 per cent) concerned homosexuality discrimination alone; five cases (10 per cent) concerned homosexuality vilification alone; and one file (2 per cent) concerned homosexuality discrimination and sex discrimination.[91] In terms of the discrimination complaints, employment was the major area of complaint (23 cases: 46 per cent), followed by the provision of goods and services (15 cases: 30 per cent).[92]

Whilst much can be said about the character of these complaints, it is significant that 23 of the 50 cases (46 per cent) cited an incident or incidents that involved some kind of harassing-type conduct.[93] Although the severity and intensity of this conduct varied, the link between these cases — and the reason I have labelled them as harassing — is that they all involved negative verbal comments directed toward an individual complainant. Indeed, it was not unusual for the complainant to use the term ‘harassment’ to describe the situation in her written complaint. Without attempting to assess the likelihood that such conduct would amount to discrimination or harassment at law, one might say that these comments were unwelcome and that the complainant appeared to experience them as derogatory, insulting, discomforting, humiliating or intimidating. In short, there was something undesirable or unacceptable about the conduct. Typical examples include:[94] ‘She’s a homosexual, it makes me sick to look at her’; or ‘the sooner all homosexuals die the better for the rest of us.’ In another instance, the complainant was told by a coworker that she would no longer allow her daughters to visit the workplace because she was ‘worried that you might influence’ them. Another complainant said that she ‘felt physically sick from anger’ at overhearing comments about her by coworkers. When she handed in her resignation she was informed by the manager that he ‘wouldn’t want anybody of your moral stature working here anyway’. Many of these situations involved a series of ongoing comments, sometimes made by more than one person. In a small number of incidents, direct threats were made to the safety of the complainant or physical violence was used. Overwhelmingly, these harassment-type cases were in the area of employment (20 of the 23 cases). However, some also took place in other forums. For example, in one case a group of lesbians and gay men travelling home from the Gay and Lesbian Mardi Gras were verbally abused in a crowded train carriage by a group of men. They shouted threats such as: ‘filthy queers we should just go and bash you all’ and, to the women, ‘all you need is a dick up you and a good fuck’. The complainant alleged that rail guards refused to assist in the situation and, indeed, made encouraging comments to the group of harassers.

One way of thinking about whether the harm from this type of harassment can be adequately understood as a gendered harm is to look more closely at the character of the conduct involved. This does not provide direct access to the complainant’s reactions or feelings, unless she explicitly identifies these in her letter of complaint. However, it does offer some insight into the kinds of sentiment that appear to shape this harassing conduct and, in turn, how this might be experienced by the complainant.

B The Harm of Sexuality Harassment: Homophobia

One of the most obvious things about these cases is that the conduct complained of differs from what we know about the conduct complained of under sexual harassment provisions. In her interim report on sexual harassment in employment cases in Victoria (for cases closed in 1991 and 1992), Morgan found that more than 85 per cent of cases alleged some form of touching.[95] In most cases the touching was seen as sexual, for example, on the breasts or buttocks, and was associated with ‘quid pro quo’ harassment, where the unwelcome sexual conduct was accompanied by a promised benefit or threatened detriment. In the Chapman and Mason study, apart from the one case of homosexuality discrimination where physical assault was alleged, none of the harassment cases involved allegations of this kind of touching.[96] Instead, these complaints appear to have more in common with the other recognised strand of sexual harassment in the workplace, the ‘hostile work environment’.

An examination of the language that prompted the women in the Chapman and Mason study to lodge a complaint of discrimination is helpful in thinking about the ways in which the workplace or other environments may be experienced as hostile in terms of one’s sexuality. The most common phrases recorded in complaint files were: ‘dyke’, ‘fucking ugly dyke’, ‘dyke mafia’, ‘bra burner’, ‘looks like a man’, ‘leso’, ‘man hater’, ‘filthy lesbian’, ‘scum’, ‘filthy queer’, ‘needs a good fuck’ and ‘deserves to die’. Both homosexuality and gender non-conformity come under attack in these remarks (as does feminism). Whilst this highlights the gendered facets of sexuality harassment, it is significant that all cases contain negative remarks about homosexuality.[97] If we look to the detail of these remarks we can see why sexuality harassment cannot be reduced to a question of gender.

Take, for example, the assertions that lesbians are ‘filthy’, ‘scum’ and ‘deserve to die’. This characterisation of women’s bodies as unhygienic or polluting has a long history in Western culture. As Grosz suggests, it is grounded in phobic responses to menstrual blood, vaginal fluids, pregnancy and childbirth. More fundamentally, this fear of the secreting female body reflects concerns about the instability or lack of order that female corporeality is presumed to embody.[98] Without detracting from the significance of this context, it is crucial to recognise that Western culture has an equally long history of marking transgressive sexualities, such as homosexuality, with the trope of physical and psychological dirtiness, a history that can be traced to longstanding Judeo-Christian traditions surrounding marriage and procreation. Human bodies may be endowed with notions of dirtiness when they pose a danger not just to the physical and mental health of the individual but also to the body politic (in the case of homosexuality, this threat is to the institutions of family and marriage).[99] Young reminds us that homosexuality is often thought to be an in-between or ambiguous form of sexuality, one that represents a disruption to the order of contemporary Western societies.[100] If this order is to be maintained, homosexuality must be expelled from the realms of respectable sexual practices. This means that the association between homosexuality and dirt is not just a consequence of established hierarchies of sexuality, but is also a means of reinforcing that order.[101] In other words, once homosexuality is said to be unclean, the sense of personal revulsion that follows ensures that it will be largely excluded from legitimate social and political spheres.

It is thus misleading to say that the references to filth that we see in these complaints are only, or even primarily, about gender stereotypes. These remarks are fundamentally tied to the sense of disgust that lesbianism evokes which, in turn, emerges from concerns about the disruptive potential of homosexuality for conventional regimes of sexuality. Nowadays, this anxiety is intensified in popular and professional discourses around HIV/AIDS. Gay men bear the brunt of this AIDS-phobia, but the assumed nexus between homosexuality and AIDS also adds to the characterisation of lesbians as dirty. Indeed, it should come as no surprise that the accusation of dirtiness is one of the most common means of expressing anti-lesbian sentiment in a variety of contexts.[102] To date, there is no research to suggest that it is equally prevalent in situations of sexual harassment.

Another linguistic feature of these complaints is the characterisation of the women as masculine and/or unattractive: ‘looks like a man’, ‘fucking ugly dyke’. This association between lesbianism and masculinity is perhaps even more popular than the association between lesbianism and dirt. In part, it is a legacy of early 20th century sexology which sought to minimise the conundrum that homosexuality posed for the established system of gender by characterising it as a case of gender inversion. Simply put, sexologists argued that female homosexuality could be understood as an inverted sense of masculinity in the female body and male homosexuality as femininity in the male body.[103] Although homosexuality is no longer pathologised to the same extent, the image of the female homosexual as masculine continues to command considerable respect in legal, medical and popular discourse.[104] Moreover, it is not unusual for this image to manifest itself in the conflation of lesbianism with feminism, with feminism itself said to be a further form of gender disorder: ‘bra burner’, ‘man hater’, ‘dyke mafia’. Certainly, any woman may be subjected to ‘accusations’ of butchness (or lesbianism) when she breaks with conventional codes of femininity. However, like the language of dirt, the ‘butch’ insult is a particularly common expression of anti-lesbian sentiment.[105]

These examples are important for two reasons. First, they highlight the way in which harassment of women who are assumed to be lesbian has much to do with gender stereotypes. Second, they highlight the fact that despite this, such harassment cannot be reduced to a question of gender (a question of sexism or misogyny). Certainly, the extent to which gender is dependent upon what Rich has called ‘compulsory heterosexuality’ is evident in this form of harassment; for example, in the common belief that lesbians just ‘need a good fuck’.[106] Nonetheless, the significance of these allusions to heterosexual sex is not found solely in the question of gendered subordination. Insults such as ‘filthy lesbian’, ‘dyke mafia’ and ‘filthy queer’ can never be reduced to a matter of male dominance alone. Rather, they are manifestations of anti-homosexual sentiment. It is this expression of homophobia — refracted through accusations of masculinity, dirtiness and gender nonconformity — which makes working and other environments hostile places for these complainants. Indeed, it is not difficult to imagine how this kind of homophobic harassment might engender a sense of ‘sexual shame’ in these women (or, for that matter, a sense of humiliation, intimidation, insult or ridicule). Such shame may well lie in the sense of ‘internalised homophobia’ that is said to be so common among lesbians and gay men. That is, it might be that the expression of homophobic attitudes by others forces these women to face the reality of lesbian stereotypes, thereby interfering with their sense of sexual self-respect.

Yet without actually talking to these complainants it is difficult to know exactly how they experienced the harm of homophobia. We cannot assume that to be the target of homophobia is to experience automatically this kind of shame. As Butler has argued, in the context of hate speech, attempts to name lesbians and gay men (or other minority groups) in insulting terms are just that: attempts.[107] Individuals may recognise that a particular name (like ‘filthy queer’) is intended to describe them but they may also mis-recognise the applicability of the description to their own experience or identity. In other words, a complainant may be momentarily harmed by the insult implicit in such remarks — and experience sexual shame — but at the same time this insult may regularly miss its mark as individuals refuse, mitigate, misunderstand or subvert its homophobic content. Quite simply, we do not know how each of these complainants experienced the harassing conduct (for example, whether this harassment was experienced as shameful or not). There is, in reality, only one thing that we do know. We can safely assume that each complainant believed that others saw her sexual preference in a negative or stereotyped light: this belief is a cornerstone of any complaint of sexuality discrimination.

I wish to suggest that this knowledge is crucial to understanding the harm of sexuality harassment. As I have indicated above, sexuality harassment cannot be reduced to a gendered harm. It must, by definition, reflect a form of anti-homosexual sentiment that exceeds the explanatory capacity of gender. But this does not tell us a great deal about the specific qualities of that harm. Cornell suggests that the notion of sexual shame offers one way of capturing the particular harms of both sexuality harassment and sexual harassment (because both are ‘sex’-based). It seems to me, however, that if we pay close attention to the one thing that we can safely assume about complaints of sexuality harassment — the complainant’s knowledge of homophobia in others — we might come closer to understanding the harm of sexuality harassment. Significantly, the relevance of this knowledge is closely tied to the entangled nexus between homosexuality and visibility. This nexus may provide further insight into the specificity of harm in such cases (and its relationship to the question of sexual shame). Indeed, I wish to suggest that an encounter with homophobia is always shaped by discourses of sexual visibility which, in turn, engender a form of harm that is, to a large extent, particular to sexuality harassment.

C The Harm of Sexuality Harassment: Visibility

Sedgwick captures the importance of the trope of visibility to homosexuality when she argues that the privacy of ‘the closet’, and the demarcation between being in or out of the closet, has been the ‘defining structure’ for lesbian and gay oppression in the 20th century.[108] The very idea that gay men and lesbians can ‘come out’ of the closet, not to mention the ease with which they are accused of ‘flaunting’ their sexuality, exemplifies her point well. This relationship between homosexuality and visibility is complex and contradictory. Whilst all forms of sexual desire have been historically subject to silences and secrecies, the classification of different desires into observable categories of sexual identity — such as homosexuality and heterosexuality — has impacted upon groups of individuals in unequal ways. The construction of the category of the homosexual has enabled women and men who experience homoerotic desires to know and speak of themselves as certain types of sexual beings: lesbian, homosexual, gay, or queer. At the same time, however, the production of these visible identities has functioned as what Foucault would call a ‘trap’.[109] That is, sexual categories provide us with a means to recognise others and ourselves as certain types of people but they also prompt us to curtail, confess and regulate our desires so that they conform to social expectations. The extent to which individuals feel the need to hide what they ‘do’ will be shaped, in part, by the extent to which they feel vulnerable to condemnation. Whilst monogamous heterosexuality is primarily seen as an unremarkable and unproblematic sexuality, sexual expressions that deviate from this benchmark continue to attract such condemnation.[110]

In order to avoid the disadvantages of visibility, many lesbians and gay men continue to exercise caution over public disclosures of their sexuality. The decision to come out to others frequently involves a careful (although sometimes spontaneous) weighing of the likely rewards and possible repercussions. Whilst gay men and lesbians may thereby feel that they cannot come out in certain situations, it would be wrong to portray the closet as a purely oppressive place. Sexual invisibility provides a strategic means of control over the extent to which one is subjected to the undesirable implications of being marked as gay or lesbian in everyday life. Indeed, the hesitation to identify publicly as gay or lesbian does not only stem from the desire to avoid the more obvious forms of intolerance and discrimination. It may also reflect an individual’s belief that the very act of coming out entails an inevitable, even if unintended, disavowal of competing or contradictory aspects of identity, not to mention an investment in fixed and essential notions of sexuality. Once an individual makes a declaration of homosexuality there is no means to control or redress the ways in which others will interpret that knowledge and little opportunity to challenge the standpoints through which it will be digested.[111] In this sense, the closet represents both an oppressive technique of self-regulation and a strategy for resisting the unwelcome surveillance of others. As Bordo puts it, ‘[t]he very same gesture that expresses protest ... can also signal retreat’.[112]

This relationship between homosexuality and visibility reveals itself in particular ways in hostile working environments, where the parties involved must interact with each other on a continuous and often daily basis. For example, in a number of cases in the Chapman and Mason study, the basis of the complainant’s discomfort appeared to lie in the realisation that her sexuality had been ‘found out’ by others. These were cases where, on face value, the actual remarks of coworkers and supervisors seem to be somewhat ambiguous, perhaps less insulting, than in some other cases. Examples include: ‘the girls at the salad bar are a bit wild’; ‘X isn’t sure which sex she prefers’; ‘I’m surprised she’s with a man’ (said by a coworker whilst looking at a photo of the complainant with a male friend); ‘you look great today ... see girls can say that to other girls’; ‘It’s horrible kissing boys isn’t it Ms X, just horrible’. Certainly, context is crucial when it comes to harassment and any of these comments could easily be said in a way, or in a situation, that is unwelcome or insulting. However, I am not convinced that this fully explains the complainant’s concern. I think this concern is also deeply embedded in the nexus between homosexuality and visibility.

Let me explain my thinking by citing another example. In this case, the complainant had cordial relationships with her coworkers. Following a commitment ceremony with her female partner, the complainant’s coworkers learnt of her sexuality and her relationship with them changed. She stated that she became a topic of speculation and discussion: ‘from then on we were the brunt of rumour and jest about the ceremony and about our sexuality’. Whilst the complainant had clear concerns about exactly what was being said about her (‘jest’) it is apparent that her complaint was not simply prompted by overt insults. She was also concerned about ‘rumours’. One can only speculate that these rumours pertain to her sexuality in general; that is, she appeared to be concerned about the rumour that she is a lesbian. She implied that she experienced harm not only through overt homophobic remarks but also through the transfer of knowledge about her sexuality between others (as in the rumour ‘she’s a lesbian, you know’). Nowadays, this kind of rumour might seem insignificant, nothing to really worry about. Nonetheless, this complainant was worried: worried enough to go to the trouble of lodging a written complaint of discrimination. I do not believe that the basis of this concern is simply a matter of what was said and done or even how it was said and done. More fundamentally, it appears to lie with the very fact that it was said or done: ‘it’, of course, being the disclosure of the complainant’s sexuality in a situation where such knowledge has the potential to engender immediate or future harm.

Collectively, these complainants seem to suggest that they are harmed because their sexuality is now public knowledge: they feel ‘trapped’ by the visibility of their homosexuality. Hence, one might say that the harm of sexuality harassment is found not just in how it makes a complainant feel about her sexuality (as in sexual shame) but also in the fear that such harassment engenders; and that to live with the fear of homophobia can be damaging.[113] Indeed, there is a definite sense in this group of complaints that simply being named as lesbian — whether in a negative or neutral way — has the potential to generate unwelcome effects, particularly in relation to the workplace or services that are accessed on a regular basis.

Another group of complainants described a different kind of situation, one where the harassing conduct appeared to be a reprimand, so to speak, for ‘flaunting’ their sexuality at work or in other public places. The decision to disclose, or not disclose, their sexuality is one that lesbians and gay men make on an almost daily basis. Except in the most unusual situations, lesbians and gay men know that there is always a risk, even if small, of immediate or future homophobia when they disclose their sexuality to others. For some, the negotiation of sexual visibility is such an everyday experience that it simply becomes second nature. For others, it is a constant and very real concern. The implications of this negotiation are well demonstrated in another discrimination complaint in the study: this complaint did not involve harassment but the scenario is applicable to all forms of sexuality discrimination. In this instance, the complainants, two women, made a reservation for overnight accommodation at a bed and breakfast. Upon arrival they were offered a room with two single beds. When they asked for a room with a double bed they were told that homosexuals were not welcome there. It was apparent from the start that, had they been prepared to accept the initial ‘suggestion’ of two single beds their booking would have been honoured. In other words, had they been prepared to pretend that they were not in a sexual relationship they would have received the accommodation they sought. Lesbians and gay men are only too aware of how this nexus between homosexuality and invisibility operates in relation to harassment: invisibility in return for the quiet enjoyment of one’s workplace, places of education, and so on. Whilst nondisclosure is no guarantee of such quiet enjoyment, it does reduce the risks associated with disclosure. Indeed, it would not be too far-fetched to suggest that the nexus between visibility and homosexuality prompts lesbians and gay men to negotiate a ‘quid pro quo’ arrangement of their own: silence in exchange for a greater sense of security.[114]

It may seem that the two kinds of situations described above are contradictory. In the first, it is the complainant who does not want others to know about her sexuality. In the second, it is the others who do not want to know about, or at least publicly recognise, the complainant’s sexuality. In a sense, however, these scenarios represent two sides of the same coin. Both experiences of harassment are tied to the negotiation of sexual visibility. This is the case when an individual is uncomfortable about the fact that she has been publicly named as a lesbian: to be so is to be marked in a way that is rarely neutral or does not involve some risk of homophobia. It is also the case when an individual experiences a negative reaction to her decision to name herself as lesbian: in this situation it is her visibility as a lesbian that engenders the harassment. In short, the common denominator between these experiences of harassment is the imperative to negotiate one’s sexual visibility. The negotiation itself can be a source of discomfort or concern in that it continually reminds lesbians and gay men about the risks of discrimination and inequality.

In this sense, visibility is central to the harm of sexuality harassment. Visibility is also central to the harm of sexual harassment, yet in a different way. For example, it is women’s visibility as sexual subjects in the workplace that exposes them to harassment by some heterosexual men. This is why so many women act, dress and speak in ways that are designed to minimise the implied heterosexual availability of their feminine gender. Furthermore, when women do experience and/or complain about sexual harassment they may well feel that they have been sexually marked as a ‘certain type’ of woman in the eyes of others. In short, much sexual harassment is only possible because the target of that harassment is unavoidably visible as a woman. However, the difference between this experience of sexual harassment and the experiences of sexuality harassment that have been described above is that while a woman may feel that the former takes many things away from her, including her sense of self-respect, she is unlikely to feel that one of the things taken from her is her ‘closet’. To put it bluntly, this is because she never really had one to begin with. This is not so for lesbians and gay men. In contrast to femininity, social invisibility is intrinsic to contemporary experiences of homosexuality (‘the love that dare not speak its name’). It is the benchmark, or the norm, so to speak, that must be challenged and dismantled, over and over again. This means that despite its fragility and ambiguous nature, the closet represents an inescapable site of negotiation in the lives of lesbians and gay men. Even if only momentarily, sexuality harassment eats away at one’s sense of control over it. It reminds lesbians and gay men that they must continually assess and reassess the rewards and risks of disclosure. This, I would like to suggest, is often experienced as harmful. This is not primarily because it engenders feelings of sexual shame about one’s homosexuality: in some cases it may, in others it may not. Rather, it is harmful because it serves lesbians and gay men with a warning about the unwelcome implications of being shameless about their sexuality.

IV CONCLUSION

In this article I have attempted to make a very simple point: the experience of sexuality harassment cannot be equated with the experience of sexual harassment. This does not mean that the two are completely distinct phenomena. They are not. Both are shaped by discourses of gender and sexuality. In each, however, these discourses are likely to manifest with different emphases. In most cases of sexual harassment, the interaction between systems of gender and sexuality produces an environment with unwelcome heterosexual overtones or demands. In sexuality harassment, the environment may also be highly sexualised but this sexualisation has an anti-homosexual or homophobic flavour to it, a flavour that is unwelcome to lesbians and gay men. The very fact that an individual decides to lodge a complaint under the sexuality provisions in discrimination law means that she or he believes that the conduct complained of involves some form of homophobic sentiment. Whilst it is difficult to know how this homophobia is experienced, we can speculate that by highlighting the spectre of the closet such harassment inevitably operates to remind lesbians and gay men of the unequal status that is accorded to homosexuality in far too many workplaces, services and educational institutions. This may well be experienced as harmful in itself.

Sexuality harassment and sexual harassment have much in common. But just as it would be unacceptable to argue that sexual harassment can be reduced to the terms of sexuality harassment, so too is it undesirable to argue that sexuality harassment can be encompassed by sexual harassment. This has implications at law. To accept, as Cornell does, that provisions designed to redress sexual harassment provide an adequate remedy for sexuality harassment is to risk the possibility that the only harm to be recognised will be that which runs close to the harm of sexual harassment. The harmful specificities of sexuality harassment may well fall through the legislative cracks.


[*] LLB (Qld), DipCrim (Melb), MA (Criminal Justice) (Rutgers), PhD (La Trobe); Lecturer, Department of Gender Studies, The University of Sydney. I would like to thank Anna Chapman and the anonymous referees for their helpful comments on this article and Miranda Nagy for her research assistance.

[1] Catharine MacKinnon, Sexual Harassment of Working Women (1979); Regina Graycar and Jenny Morgan, The Hidden Gender of Law (1st ed, 1990) 353–98; Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 54–69. See also Carol Bacchi and Jim Jose, ‘Historicising Sexual Harassment’ (1994) 3 Women’s History Review 263.

[2] Sex Discrimination Act 1984 (Cth) ss 28A–L; Anti-Discrimination Act 1977 (NSW) ss 22A–J; Equal Opportunity Act 1994 (Vic) ss 85–95; Equal Opportunity Act 1984 (SA) s 87; Equal Opportunity Act 1984 (WA) ss 246; Anti-Discrimination Act 1991 (Qld) ss 11820; Anti-Discrimination Act (NT) s 22; Discrimination Act 1991 (ACT) ss 5864; Anti-Discrimination Act 1998 (Tas) s 17.

[3] An interesting example of this is found in the Protection from Harassment Act 1997 (UK) c 40. This legislation, which has both criminal and civil arms, offers remedies for a diversity of behaviours, including stalking, domestic violence and hate crime. See Neil Addison and Timothy Lawson-Cruttenden, Harassment Law and Practice (1998) chs 2, 3.

[4] For example, s 28 of the Workplace Health and Safety Act 1995 (Qld) imposes a duty of care upon employers not to place their employees at risk (the legislation also imposes a duty of care in a range of broader employment relationships). See also Queensland Division of Workplace Health and Safety, Violence at Work: A Workplace Health and Safety Guide (1999). Another example is found in s 13(3) of the Public Service Act 1999 (Cth) which requires that an employee ‘when acting in the course of [Australian Public Service] employment, must treat everyone with respect and courtesy, and without harassment.’ For an employer policy see, eg, The University of Sydney, Harassment Prevention Policy — Your Rights and Responsibilities (2000) <http://www.usyd.edu.au/su/eeo/about/haras.html> at 1 October 2002. Associated notions of workplace bullying and workplace violence have also received considerable attention in recent years: see Mary-Jane Ierodiaconou, ‘Recognising and Preventing Bullying and Harassment in the Workplace’ in Legal and Accounting Management Seminars, Employment Law: Harassment, Bullying and Horseplay (2001) 1; Max Spry, ‘Workplace Harassment: What Is It, and What Should the Law Do about It?’ (1998) 40 Journal of Industrial Relations 232, 234–5; Queensland Division of Workplace Health and Safety, Workplace Bullying: An Employer’s Guide (2nd ed, 2002). It is also interesting to note the recent introduction of the concept of stalking — which has been described as a criminal form of harassment — into the criminal law of all Australian States and Territories: see, eg, Crimes Act 1958 (Vic) s 21A; Criminal Law Consolidation Act 1935 (SA) s 19.

[5] Rugema v J Gadsen Pty Ltd t/a Southcorp Packaging [1997] EOC 92-887, 77 195.

[6] Cvetkovski v Cleary Bros (Bombo) Pty Ltd [1999] EOC 93-032, 79 500.

[7] Discussed further in Part II(A) below.

[8] Therese MacDermott, ‘The Duty to Provide a Harassment Free Work Environment’ (1995) 37 Journal of Industrial Relations 495, 499. See also Kate Eastman, ‘What Is Harassment and How Does Bullying Fit into Harassment?’ in Legal and Accounting Management Seminars, Employment Law: Harassment, Bullying and Horseplay (2001) 9–11.

[9] Agencies which explicitly state that non-sexual forms of harassment are illegal under discrimination law include (but are not confined to) the Anti-Discrimination Board of New South Wales, Equal Opportunity Commission Victoria and Equal Opportunity Commission Western Australia: see Anti-Discrimination Board of New South Wales, Harassment in the Workplace: Guidelines for Managers (1998) 3; Equal Opportunity Commission Victoria, Harassment in the Workplace: Guidelines for Managers (2000) 5; Commissioner for Equal Opportunity Western Australia, Annual Report 1997–98 (1998) 11.

[10] People who are transgender or bisexual may also be subject to discrimination and harassment that is related to sexuality and gender. However, my discussion in this article is restricted to lesbians and gay men. It is also important to recognise that the experience of sexuality discrimination is always refracted through specificities of ethnicity, race, age and so on. In this article I focus on the interaction between sexuality and gender.

[11] Anti-Discrimination Act 1992 (NT) s 20(1) defines discrimination as

(a) any distinction, restriction, exclusion or preference made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity; and

  • harassment on the basis of an attribute,

in an area of activity referred to in Part 4.

Under s 19, attributes include ‘race’, ‘sex’, ‘sexuality’, ‘age’ and ‘impairment’.

[12] Drucilla Cornell, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (1995).

[13] Ibid.

[14] Wendy Brown, States of Injury: Power and Freedom in Late Modernity (1995).

[15] Judith Butler, Excitable Speech: A Politics of the Performative (1997).

[16] Anti-Discrimination Act 1992 (NT) ss 1920.

[17] Equal Opportunity Act 1984 (WA) ss 49AC. A person shall be taken to ‘harass racially’ another if he or she ‘threatens, abuses, insults or taunts’ another person on the basis of their ‘race’, ‘a characteristic that appertains generally to persons of the race’ or ‘a characteristic that is generally imputed to persons of the race’ and ‘the other person has reasonable grounds for believing that objecting to the relevant threats, abuse, insults or taunts would disadvantage the other person in any way in connection with’ employment, education or accommodation: see ss 49A–D.

[18] Anti-Discrimination Act 1998 (Tas) s 17. This Act became law on 10 December 1999 and repealed the Sex Discrimination Act 1994 (Tas) which had provisions similar to s 17 of the new legislation. The conduct must take place ‘in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed’. The areas of activity covered in relation to these grounds include, among other things, employment, education, provision of goods and services, and accommodation: s 22(1)(a)(g).

[19] Disability Discrimination Act 1992 (Cth) ss 3540.

[20] Jones notes that the much earlier federal Racial Discrimination Bill 1973 (Cth) proposed to create ‘offences of incitement of racial disharmony and dissemination of ideas based on racial superiority or hatred.’ By the time the Bill became law in 1975 these provisions against hate speech had been dropped. It was only after subsequent inquiries — into racist violence, Aboriginal deaths in custody and multicultural legal issues — highlighted the problem of racial intimidation and harassment that the federal government sought to provide remedies for the expression of ideas involving racism and other types of group prejudice: Melinda Jones, ‘The Legal Response: Dealing with Hatred — A User’s Guide’ in Chris Cunneen, David Fraser and Stephen Tomsen (eds), Faces of Hate: Hate Crime in Australia (1997) 214, 217–18.

[21] ADA 1977 (NSW) ss 49ZS–TA, introduced by the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (NSW).

[22] ADA 1977 (NSW) ss 38R–T, introduced by the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW).

[23] ADA 1977 (NSW) ss 20B–D, introduced by the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW).

[24] ADA 1977 (NSW) ss 49ZXA–C, introduced by the Anti-Discrimination Amendment Act 1994 (NSW).

[25] Racial Vilification Act 1996 (SA); Anti-Discrimination Act 1991 (Qld); Discrimination Act 1991 (ACT); Racial and Religious Tolerance Act 2001 (Vic). Note, however, that statutes in other States do not include as many grounds as New South Wales. For example, in South Australia only racial vilification is covered under the Racial Vilification Act 1996 (SA) s 4, and in Queensland and the Australian Capital Territory only ‘incitement to racial or religious hatred’ and ‘racial vilification’ are covered under the Anti-Discrimination Act 1991 (Qld) s 126 and the Discrimination Act 1991 (ACT) s 67 respectively. The Racial and Religious Tolerance Act

2001 (Vic) ss 78 cover only ‘racial’ and ‘religious’ vilification. The Northern Territory has no comparable provisions.

In a number of States there are additional provisions for ‘serious vilification’. For example, in New South Wales, these allow a complaint to be referred to the police for criminal prosecution. The key ingredient of serious vilification is a perpetrator who threatens, or incites others to threaten, physical harm towards a person or their property on the basis of one of the grounds listed above. Serious vilification is prohibited by the ADA 1977 (NSW) on the grounds of race (s 20D); homosexuality (s 49ZTA); HIV/AIDS status (s 49ZXC); and transgender status (s 38T). See also Criminal Code Amendment (Racist Harassment and Incitement to Racial Hatred) Act 1990 (WA) s 77.

[26] Racial Hatred Act 1995 (Cth) s 3. The provisions of this Act were inserted into the Racial Discrimination Act 1975 (Cth) pt IIA (‘Prohibition of Offensive Behaviour Based on Racial Hatred’) and came into force in October 1995. The legislation states that it ‘is unlawful for a person to do an act, otherwise than in private,’ that is ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people’ if ‘the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group’: Racial Discrimination Act 1975 (Cth) s 18C(1)(a), (b).

[27] The exception to this is found in the Anti-Discrimination Act 1991 (Qld) s 118. It puts no restriction on the area where sexual harassment can take place but instead states that ‘[a] person must not sexually harass another’. The Act does impose an element of intention (s 119(e)) and provides examples of conduct that may constitute sexual harassment (s 119(a)–(d)).

[28] Racial Vilification Act 1996 (SA) s 4 (‘public act’ is defined in s 3); Anti-Discrimination Act 1998 (Tas) s 19 (‘public act’ is defined in s 3); Discrimination Act 1991 (ACT) s 66(1) (‘public act’ is defined in s 65). ‘Public act’ under the ADA 1977 (NSW) is defined in s 20B (race); s 49ZS (homosexuality); s 49ZXA (HIV/AIDS status) and s 38R (transgender status). The Racial and Religious Tolerance Act 2001 (Vic) s 12 creates an exception where ‘the person engaged in the conduct in circumstances that may reasonably be taken to indicate that the parties to the conduct desire it to be heard or seen only by themselves.’ The Anti-Discrimination Act 1991 (Qld) does not state that incitement to racial or religious hatred must be in public.

[29] Racial Discrimination Act 1975 (Cth) s 18C(1)(a), (b). Although anti-discrimination legislation has been said to simultaneously depend upon and challenge the public–private divide, the ‘public’ requirement of vilification provisions appears to reinforce this divide. For discussions of the public–private divide in discrimination law, see Margaret Thornton, ‘The Public/Private Dichotomy: Gendered and Discriminatory’ (1991) 18 Journal of Law and Society 448; Jenny Morgan, ‘Sexual Harassment and the Public/Private Dichotomy: Equality, Morality and Manners’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (1995) 89.

[30] ADA 1977 (NSW) s 22A, pt 2A, inserted by the Anti-Discrimination (Amendment) Act

1997 (NSW). This definition follows the provisions for sexual harassment in the Sex Discrimination Act 1984 (Cth).

[31] ADA 1977 (NSW) s 49ZT(1). Tasmanian and ACT provisions are similar to NSW. The Equal Opportunity Act 1984 (WA) s 49A(3) prohibits conduct which ‘threatens, abuses, insults or taunts’ others. The racial hatred provisions of the Racial Discrimination Act 1975 (Cth) refer to acts that ‘offend, insult, humiliate or intimidate’ others: s 18C(1)(a), (b). The Racial and Religious Tolerance Act 2001 (Vic) ss 78 prohibit conduct that ‘incites hatred against, serious contempt for, or revulsion or severe ridicule’ of others.

[32] New South Wales Law Reform Commission, Review of the Anti-Discrimination Act

1977 (NSW), Report No 92 (1999) 494.

[33] The ‘sexuality’ grounds in each State are: ADA 1977 (NSW) s 49ZG (homosexuality); Equal Opportunity Act 1995 (Vic) s 6(d) (lawful sexual activity) and s 6(1) (sexual orientation); Anti-Discrimination Act 1991 (Qld) s 7(1)(l) (lawful sexuality activity); Equal Opportunity Act

1984 (SA) s 29(3) (sexuality); Anti-Discrimination Act 1998 (Tas) s 16(c) (sexual orientation) and s 16(d) (lawful sexual activity); Discrimination Act 1991 (ACT) s 7(1)(b) (sexuality); Anti-Discrimination Act 1992 (NT) s 19(1)(c) (sexuality). The Human Rights and Equal Opportunity Commission Regulations 1989 (Cth) reg 4(a)(ix) covers the ground of ‘sexual preference’ in relation to employment and occupation, although it does not render conduct unlawful.

[34] The New South Wales Law Reform Commission makes this point by referring to Metwally v University of Wollongong [1984] EOC 92-030, 75 560–2, where racial harassment by an educational authority was held to constitute discrimination; O’Callaghan v Loder [1983] 3 NSWLR 89, 94–5 in which it was found that unwelcome sexual conduct could amount to a hostile work environment and hence constitute differential treatment in employment; and

Hall v A & A Sheiban Pty Ltd (1988) 20 FCR 217, 232 (Lockhart J), 279–80 (French J), a decision of the Full Federal Court which gave definitive support to the approach taken by Mathews DCJ in O’Callaghan v Loder. The Commission also makes reference to comparable decisions in the US in the area of employment: New South Wales Law Reform Commission, above n 32, 496–7.

[35] Chris Ronalds, Discrimination Law and Practice (1998) 82.

[36] Human Rights and Equal Opportunity Commission, Sexual Harassment Code of Practice (1996) 20.

[37] Anti-Discrimination Board of New South Wales, Harassment in the Workplace: Guidelines for Managers (2nd ed, 1998) 3. The other grounds of non-sexual harassment are: ‘sex’, ‘pregnancy’, ‘race (including colour, nationality, descent, ethnic or ethno-religious background)’, ‘marital status’, ‘disability — past, present or future; actual or presumed’, ‘transgender (transsexuality) — actual or presumed’, and ‘age’.

[38] Ibid 4. The Board states that this definition of non-sexual harassment is based upon case law and distinguishes it from the definition for sexual harassment provided by ‘written law’.

[39] [1994] EOC 92-626. This case was decided prior to the introduction of vilification provisions in New South Wales.

[40] New South Wales Law Reform Commission, above n 32, 495. The Commission cites O’Callaghan v Loder [1983] 3 NSWLR 89 as the authority for this point.

[41] See, eg, ADA 1977 (NSW) s 8 in relation to race.

[42] See, eg, ADA 1977 (NSW) s 17 in relation to race. See also New South Wales Law Reform Commission, above n 32, 497. The Commission notes that the first of these limitations would be overcome by its recommendation to redefine discrimination with a focus on detriment.

[43] New South Wales Law Reform Commission, above n 32, 498.

[44] Ibid 57.

[45] [1983] 3 NSWLR 89, 94. At the time of this case there was no separate ground of sexual harassment.

[46] In relation to discrimination overall, there are suggestions that, at least in the past, lesbians have preferred to lodge under the sex discrimination ground rather than the homosexuality discrimination ground: Carmel Niland, ‘Opening Address: The Silent Twin — Lesbian Discrimination’ in Lavender (ed), What Is Lesbian Discrimination? Proceedings of a Forum Held by the Anti-Discrimination Board, in October 1987 (1990) 1, 2.

[47] Human Rights and Equal Opportunity Commission, above n 36, 21. The Commission notes, however, that it is important to maintain a distinction between sexual harassment and ‘general harassment or bullying that is not sexual in nature’: at 20.

[48] This might be difficult in a situation where the conduct is clearly anti-homosexual but does not have an explicit sexual character or contains no overt sexual references. Writing before some jurisdictions had introduced provisions for sexuality discrimination, Gilmour-Walsh canvasses the possible arguments for, and limitations of, lodging a complaint of discrimination under sex discrimination legislation in jurisdictions without sexuality discrimination provisions. However, Gilmour-Walsh does not address the question of sexuality harassment in specific terms: Bridget Gilmour-Walsh, ‘Exploring Approaches to Discrimination on the Basis of Same-Sex Activity’ (1994) 3 Australian Feminist Law Journal 117, 120–34.

[49] As Wayne Morgan points out, if a particular legal remedy is dependent upon problematic assumptions, the individual benefits of a given approach may be outweighed by the broader implications involved in reproducing such assumptions. He makes this point in terms of the heterosexism of discrimination law in Australia which, he suggests, is firmly attached to a conventional heterosexual/homosexual hierarchy: Wayne Morgan, ‘Still in the Closet: The Heterosexism of Equal Opportunity Law’ (1996) 1(2) Critical InQueeries 120, 136–7.

[50] In some jurisdictions the complainant must be made to feel intimidated, humiliated and offended and their reaction must be reasonable in the circumstances: Equal Opportunity Act 1984 (SA) s 87(11); Discrimination Act 1991 (ACT) s 58. In most jurisdictions it is the reasonable person who must have anticipated that the person harassed would have been offended, humiliated or intimidated: Sex Discrimination Act 1984 (Cth) s 28A(b); Equal Opportunity Act 1995 (Vic) s 85; ADA 1977 (NSW) s 22A. Tasmania’s sexual harassment legislation adds ‘insulted and ridiculed’ to the list of emotions that may be considered: Anti-Discrimination Act 1998 (Tas) s 17(3). While the notion of ‘insult’ remains analogous to an offence to self-worth, ‘the concept of “ridicule” might invoke a more systemic understanding of self integrity’: Anna Chapman, ‘Anti-Discrimination Act 1998 (Tas)’ (2000) 13 Australian Journal of Labour Law 183, 188.

[51] See, eg, MacKinnon, above n 1, 47–55, which was cited with approval in the appeal case of Hall v A & A Sheiban (1988) 20 FCR 217, 243 (Lockhart J). See also Fay Marles, Fifth Annual Report of the Commissioner for Equal Opportunity for the Year Ended 30 June 1982 (1982) 17.

[52] Morgan, ‘Sexual Harassment and the Public/Private Dichotomy’, above n 29, 92. On this point Morgan refers to MacKinnon’s examination of Rabidue v Osceola Refining Co, [1986] USCA6 1911; 805 F 2d 611 (6th Cir, 1986), a US case concerning sexual harassment in a hostile work environment. In this case the workplace was adorned with posters of nude and semi-clad women and the supervisor regularly made derogatory comments about women. It was affirmed on appeal that, due to the fact that modern America is imbued with ‘open displays of written and pictorial erotica ... the average American should not be legally offended by sexually explicit posters’: Rabidue v Osceola Refining Co, 584 F Supp 419, 433 (DC Mich) (Newblatt J) (emphasis in original). Morgan takes up MacKinnon’s point that the complainant ‘did not claim that she was offended, she said she was discriminated against based on her sex’: Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) 115. In Morgan’s words, ‘she had been treated less favourably than a man and that less favourable treatment had been meted out through images of women’s sexuality’: Morgan, ‘Sexual Harassment and the Public/Private Dichotomy’, above n 29, 93.

[53] Jeffrey Minson, Questions of Conduct: Sexual Harassment, Citizenship, Government (1993) 102–3. Minson argues that the boundary lines of personal space are drawn by recourse to ‘good manners’ and that the policing of manners is an ‘indispensable concomitant of a democratic political culture’ and hence that ‘correct’ conduct towards a woman worker is a prerequisite to ‘equal “industrial citizenship”’.

[54] Morgan, ‘Sexual Harassment and the Public/Private Dichotomy’, above n 29, 108, claims that Minson’s formulation appears to transform sexual harassment into a matter of politeness.

[55] Bacchi and Jose, above n 1, 11.

[56] Jenny Morgan, ‘Sexual Harassment: Where Did It Go in 1995?’ in Jenna Mead (ed), Bodyjamming: Sexual Harassment, Feminism and Public Life (1997) 101, 111.

[57] Cornell, above n 12, 201.

[58] Ibid 10 (emphasis in original).

[59] Ibid 200.

[60] Morgan, ‘Sexual Harassment: Where Did It Go in 1995?’, above n 56, 113 gives a generally favourable reception to Cornell’s definition of sexual harassment, whilst expressing reservations about its gender neutrality.

[61] Cornell, above n 12, 170.

[62] Ibid 174–7.

[63] See, eg, Brown, above n 12; Butler, above n 12; Mari Matsuda et al (eds), Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993); Catharine MacKinnon, Only Words (1993).

[64] Cornell, above n 12, 9. Here Cornell draws upon John Rawls’ account of shame as the effect of a denial of the primary good of self-respect.

[65] Ibid 213–14.

[66] Nan Hunter, ‘Sexuality and Civil Rights: Re-Imagining Anti-Discrimination Laws’ (2000) 17 New York Law School Journal of Human Rights 565, 566. State and local anti-discrimination laws are said to be less effective than federal legislation would be: at 573. See also J Banning Jasiunas, ‘Is ENDA the Answer? Can a “Separate but Equal” Federal Statute Adequately Protect Gays and Lesbians from Employment Discrimination?’ (2000) 61 Ohio State Law Journal 1529, 1530–45. Note that most discussions of sexuality harassment and discrimination in the US focus on employment alone.

[67] 42 USC § 2000e (2000).

[68] Cases on point include DeSantis v Pacific Telephone and Telegraph Co, 608 F 2d 327 (9th Cir, 1979); Hamner v St Vincent Hospital and Health Care Center, [2000] USCA7 497; 224 F 3d 701 (7th Cir, 2000).

[69] [1998] USSC 21; 523 US 75 (1998) (‘Oncale’).

[70] Ibid 79–80 (Scalia and Thomas JJ); see Jasiunas, above n 66, 1539. Since Oncale, federal courts have been willing to hear same-sex sexual harassment cases where the harasser is gay, on the basis that the harassment is presumed to be because of the victim’s sex: at 1539.

[71] [2000] USCA2 411; 232 F 3d 33 (2nd Cir, 2000).

[72] Ibid 35.

[73] Quinn v Nassau County Police Department, 53 F Supp 2d 347, 350 (EDNY, 1999) (Spatt J). For a discussion of other cases on this point, see Ruthann Robson, Lesbian (Out)Law: Survival under the Rule of Law (1992) ch 6.

[74] Jasiunas, above n 66, 1543.

[75] Hayden Coleman, ‘Same-Sex Sexual Harassment: A Survey of the Application of Federal Law’ (2001) Lambda Legal Defense and Education Fund <http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=149> at 6 December 2001.

[76] [1989] USSC 85; 490 US 228 (1989).

[77] Ibid 250–1 (Brennan J).

[78] Other critiques of Cornell include Janice Richardson, ‘“A Burglar in the House of Philosophy”: Theodor Adorno and Drucilla Cornell and Hate Speech’ (1999) 7 Feminist Legal Studies 3; Ralph Sandland, ‘The Mirror and the Veil: Reading The Imaginary Domain(1998) 6 Feminist Legal Studies 33.

[79] B J Chisholm, ‘The (Back)Door of Oncale v Sundowner Offshore Services Inc: “Outing” Heterosexuality as a Gender-Based Stereotype’ (2001) 10 Law and Sexuality 239, 272–3.

[80] Eve Kosofsky Sedgwick, Epistemology of the Closet (1990); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (1990).

[81] Chisholm, above n 79, 268 (emphasis added).

[82] As discussed in above Part II.

[83] Cornell, above n 12, 6–7. She also uses ‘sex’ to refer to the ‘unconscious identification of ourselves as beings who have been “sexed”’, beings with a ‘sexual imago which implicates our sexual imaginary’: at 7. Although this psychoanalytically informed notion is central to Cornell’s argument in this book, it is not essential to the point I wish to make here.

[84] Ibid 187, 210.

[85] See, eg, ibid 214–15, 223. This is also evident in Drucilla Cornell and Deborah Milgate, ‘“We Want Bread, We Want Roses”: An Interview with Drucilla Cornell’ (1999) 51 Rutgers Law Review 1031, 1032–3. Richardson also notes Cornell’s conflation of sex and sexuality: Richardson, above n 78, 12.

[86] Cornell, above n 12, 214–17, 223.

[87] Ibid 214.

[88] Jude Irwin, The Pink Ceiling Is Too Low: Workplace Experiences of Lesbians, Gay Men and Transgender People (1999); Victorian Gay and Lesbian Rights Lobby, Enough Is Enough: A Report on Discrimination and Abuse Experienced by Lesbians, Gay Men, Bisexuals and Transgender People in Victoria (2000); Gay Men and Lesbians against Discrimination, Not a Day Goes By: Report on the GLAD Survey into Discrimination and Violence against Lesbians and Gay Men in Victoria (1994).

[89] Anna Chapman and Gail Mason, ‘Women, Sexual Preference and Discrimination Law: A Case Study of the NSW Jurisdiction’ [1999] SydLawRw 21; (1999) 21 Sydney Law Review 525. This article was based on an examination of the conciliation files of the New South Wales Anti-Discrimination Board that were closed between January 1993 and February 1997. The discussion that follows is based on this empirical research, unless cited otherwise.

[90] The research originally produced 51 files, but ‘[o]ne of these was clearly not intended to be a complaint but was rather in the nature of a written inquiry ... [I]t has been excluded from [the] analysis’: ibid 528. For further details on the methodology of this research and the processes of the Board through which a file is produced, see ibid 526–8.

[91] Ibid 529.

[92] Ibid 531.

[93] This includes three of the four vilification complaints. It is not surprising that complainants in these cases cited harassing-type conduct, as the definition of vilification lends itself to this kind of interpretation. Approximately 90 per cent of employment cases involved behaviour that the complainant appeared to experience as harassing. Only eight of the 23 employment cases in this study (approximately 35 per cent) evidenced the forms of discriminatory treatment that Rosemary Hunter and Alice Leonard identified in their study of sex discrimination in employment (such as selection processes, terms and conditions of employment, denial of benefits or promotion etc): ‘The Outcomes of Conciliation in Sex Discrimination Complaints’ (Working Paper No 8, Centre for Employment and Labour Relations Law, The University of Melbourne, 1995) 10–11.

[94] Chapman and Mason, above n 89, 536.

[95] Jenny Morgan, ‘Interim Report on Examination of All Sexual Harassment in Employment Cases Closed in 1991 and 1992’ (Unpublished paper) 2.

[96] Chapman and Mason, above n 89, 536.

[97] This is to be expected in complaints that are lodged under the homosexuality ground.

[98] Elizabeth Grosz, Volatile Bodies: Toward a Corporeal Feminism (1994) 203.

[99] Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (1966) 95–129; Judith Butler, Gender Trouble, above n 80, 131.

[100] Iris Young, Justice and the Politics of Difference (1990) 136ff.

[101] Ibid 146. To make this argument Young appropriates aspects of Kristeva’s work on the notion of dirt. In particular, she draws upon Kristeva’s suggestion that concepts of dirt and dirtiness often mark the precarious nature of subjectivity. See, eg, Julia Kristeva, Powers of Horror: An Essay in Abjection (Leon S Roudiez trans, 1982 ed) [trans of: Pouvoirs de l’horreur].

[102] Gail Mason, The Spectacle of Violence: Homophobia, Gender and Knowledge (2002) 44.

[103] Martha Vicinus, ‘“They Wonder to Which Sex I Belong”: The Historical Roots of the Modern Lesbian Identity’ in Dennis Altman et al (eds), Homosexuality, Which Homosexuality? Essays for the International Scientific Conference on Lesbian and Gay Studies (1989) 171; Thomas Laqueur, ‘The Social Evil, the Solitary Vice and Pouring Tea’ in Michael Feher (ed), Fragments for a History of the Human Body: Part Three (1989) 334, 334–5.

[104] See, eg, Susanne Davies and Andrea Rhodes-Little, ‘History, Sexuality and Power: Deconstructing the “Lesbian Vampire Case”’ (1993) 12 Australian Cultural History 14, 19–20.

[105] Mason, above n 102, 50–2.

[106] Adrienne Rich, ‘Compulsory Heterosexuality and Lesbian Experience’ (1980) 5 Signs 631,

638–9.

[107] Butler, Excitable Speech, above n 15, 33. In arguing that vilifying names may force themselves upon you at the same time that they regularly miss their mark, Butler emphasises that subjectification is an ongoing process, not something that happens in a single act. An identity is not something that one can just ‘be’ at any given moment. Instead, it is a ‘kind of becoming or activity’ that must be continually repeated in order to sustain an impression of natural authenticity: Butler, Gender Trouble, above n 80, 112, 140. If language does act to bring its addressee into being — and this is highly debatable for Butler — its success is dependent upon the citation of these names over and over again and, hence, is only ever provisional or momentary. In effect, racist, homophobic or phallocentric names may act upon the subject to constitute ‘identity through injury’ but they do not confer this identity in a ‘prescribed or mechanical way’ that ‘will remain always and forever rooted in its injury’: Butler, Excitable Speech, above n 15, 113.

[108] Sedgwick, above n 80, 71–2.

[109] Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans, first published 1975, 1977 ed) 200 [trans of: Surveiller et punir: Naissance de la prison].

[110] This includes homosexuality, sadomasochism and sex work.

[111] Ed Cohen, ‘Who Are “We”? Gay “Identity” as Political (E)Motion (A Theoretical Perspective)’ in Diana Fuss (ed), Inside/Out: Lesbian Theories, Gay Theories (1991) 71.

[112] Susan Bordo, ‘The Body and the Reproduction of Femininity: A Feminist Appropriation of Foucault’ in Alison Jaggar and Susan Bordo (eds), Gender/Body/Knowledge: Feminist Reconstruction of Being and Knowing (1989) 13, 21.

[113] In contrast, to name someone as heterosexual would rarely constitute a negative comment on his or her sexuality. Nor would it be likely to expose an individual to the negative responses of others.

[114] The ‘don’t ask, don’t tell’ policy of the US military is probably one of the most notorious examples of this form of quid pro quo arrangement.